Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-02
COURT OF APPEALS.


c. L. Martin VS.. A. w. & D. T. Smith
from Cooke county; opinion by White,
P. J. Appellees sued to recover the
amount OF two promIssory notes given fol
the purchase of cotton gin, and due No.
Vember Is, 1884, and November Is. 1885,
respectively. The notes contained the
contract Of sale and a stipulation that the
title to the gin remain vested in appellees
with % per cent. wear and tear should
full and final payments of the notes not
be made, and further stipulation to keep
insured against loss by fire for the
amount of the note. Appellant
took out policy for $1,000
on the gin and other property valued at
$500 Before the first note matured the
property burned and appellant recovered
500, which he Immediately paid 70
rata to parties sustaining losses by fire =;
appellees received nothing and in fact
presented no claim therefor. AppelIees
won the case below.
l. Were appellees entitled to recover
in essumpsit on the notes We think
not, because the notes had not mature d
and the property still remained in the
vendors. 2. If appellees had a right
of action, it was for not keep
ing the property insured for it's
full value. That the judgments in
both forms of action would be the same
does not alter the question. The de-
murrer to the petition was improperly
oVerruled, and the Judgment is reversed
and the cause remanded.
Missouri Pacific Railway Company vs..
Marion Johnson ct al, appeal from Dial
las county; opinion by Wilson, j.
This was suit to recover damages for
flooding and destroying crops. Appellees
allege in their petition that appellant $50
negligently and carelessly kept, construct
ed and maintained it's said line of said
railroad that it caused the waters to COL
leCt and back over and inundate and over
flow" said crops, etc. This was specially
excepted to, because it did
not show wherein said rail-
road was negligently constructed
etc. The court erred in Overruling this
exception because appellees should have
stated their cause of action with the
distinct aYerments and such particularly
as to inform appellant of the acts of
omission, setc. Appellees petition also
failed to a,lege the market value Of the
crops at the time they were destroyed,
and the court erred in overruling the
general demurrer thereto. The Judgment
is reversed and the cause remanded.
Curtis Casey vs.. City of Paris, from La
mar county; opinion by Wilson, j.
was convicted for violation of
an ordinance and appealed to
the county. The appeal bond
was approved by the Mayor
The appeal was dismissed because the
bond &c n 70 ri ~ of
Paris. The Judgment was erroneous be-
cause the prosecution is in the name of
the city and should the bond be forfeited
the city would collect it. The procedure
in such cases is similar to cases conduct
ed by the state, but the statute does not
require that the bond be made payable to
the state. The judgment is reversed and
the cause remanded for trial de noVo in
the County court.
Schneider & Davis VS.. Liebes Bros. &
Co., from Dallas county, opinion by
Wilson, J. AppelIees sold Loeb &
Friedberg two cases of cigars on
credit, shipped Ithem by railroad
and forwarded bill of lading. Loeb
& Friedberg received bill Of lading
January II, 1885, and transferred the
same for valuable consideration TO ap-
pellants, and on the morning at 10 o'clock,
under authority of the bill of lading, they
received the goods from the railroad. In
the evening of the same day appellees at
tempted to exercise the right of stoppage
in transitu. On this state of facts ap-
pellees recovered. There is not doubt
that the title to said goods had vested in
Loeb & Friedburg by a bona fde sale
sale without fraud and the right Of stop
page in transitu had ceased. The judg-
ment is reversed and the cause dismissed.
B. B. Wright vs.. State, from Live Oak
county; opinion by Wilson, J. This is
conviction for keeping a gaming bank,
and the punishment was assessed at $25
fine and ten days Imprisonment. This
punishment was under the provision of
the act of March 10, 1885, amending
article 358. This act was declared unCOn-
by this court in Hunt VS.. state,
% ct. of ap,, 1886, and the punishment
must be imposed under article 35S.
Under this article imprisonment is discre-
tionary with the jury at not over thirty
days, while the amending act required
Imprisonment of not less than ten nor
more than ninety days, leaving no discre-
ton to the jury.
A conviction may be had upon the un
supported evidence of an accomplish.
The judgment is reversed and the cause
remsnded that it may be tried under
article 358.
City of Fort Worth VS.. Townsend &
Lusher, from Tarrant county; opinion by
White, P. j. Appellants appeal was
dismissed on motion of sppellees in the
County court because the transcript, etc,
were not sent up by the first term of the
court. See the opinion in Jones VS..
Spann for the discussion of this question.
The judgment is reversed and the cause
remanded.
Francisco Olivares, alias Pancho
Nelso VS.. State, from Atascosa county;
opinion by White, P. j. Appel
liant was convicted of murder in
the second degree for the murder of his
own wife and sentenced at ten years in
the penItentiary.
In our opinion the evidence is wholly
to support the verdict and the
Judgment is reversed and the cause re
manded.